Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 10. Damages
If the legal system cannot devise mechanisms for addressing a coherent dispute as
a unified whole, the litigation will aggregate itself anyway. The end result may be
the worst of both worlds. Neither does the client have individual litigant autonomy,
nor does the legal system obtain real finality and consistency by precluding the
relitigation of decided issues. Neither can the client rely on full control by the
client’s individually retained lawyer, nor can the client rely on explicit ethical duties
to the client by those who control the case.
Howard M. Erichson, Informal Aggregation: Procedural and Ethical Implications of
Coordination Among Counsel in Related Lawsuits, 50 DUKE L.J. 381 (2000).
Other authors have taken a more favorable view of the informal aggregation that resulted
in the Vioxx settlement:
The Vioxx settlement took the form not of a class action settlement but of a contract
between the defendant-manufacturer Merck & Company, Inc. and the small number
of law firms within the plaintiffs’ bar with large inventories of Vioxx clients. The
contract described a grid-like compensation framework for the ultimate cashing out
of Vioxx claims, but Vioxx claimants themselves literally were nonparties to that
contract. The enforcement mechanism for the deal consisted not of preclusion but
of contractual terms whereby each signatory law firm obligated itself to do two
things: to recommend the deal to each of its Vioxx clients and—“to the extent
permitted by” applicable ethical strictures—to disengage from the representation of
any client who might decline the firm’s advice to take the deal. Absent a signatory
law firm’s commitment of its entire Vioxx client inventory to the deal, Merck would
have the discretion to reject the firm’s enrollment such that none of the firm’s clients
would be eligible to participate.
The Vioxx settlement worked, at least in the practical sense that it garnered, by a
comfortable margin, the overall rate of participation from Vioxx claimants that
Merck had specified as a precondition for its funding obligations. . . .
[T]he deal consisted of . . . allocation of the fixed overall sum of $4.85 billion from
Merck according to a point system designed to assess the relative strength of
individual Vioxx users’ cases as to specific causation. . . .
Richard A. Nagareda, Embedded Aggregation in Civil Litigation, 95 CORNELL L. REV. 1105
(2010).
4. The BP Oil Spill
On April 20, 2010, an explosion in an offshore oil rig operated by BP created an
outpouring of oil into the Gulf of Mexico. Approximately 4.9 million barrels of oil spilled into
the Gulf before the well was ultimately sealed. Oil eventually reached the shores of Texas,
Louisiana, Mississippi, Alabama, and Florida. Businesses and individuals, from beach resorts to
fishermen, felt the economic impact of the spill. The spill also caused significant ecological
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